Burlington, Kansas & Southwestern Railroad v. Gillen

38 Kan. 673

• Court: Supreme Court of Kansas
• Decided: January 15, 1888
• Status: Published

Opinion

Per Curiam:

This proceeding was brought to reverse a judgment rendered against the Burlington, Kansas & Southwestern Railroad Company in the district court of Decatur county. The record is challenged upon the ground that “the case” was never served; and therefore it is claimed that this court has no power to consider the errors alleged. It appears that the judgment was rendered April 30,1886. Ninety days were given by the trial court to “make a case.” Nothing was said in the order about the time within which “the case” was to be served. (Civil Code, §§ 548, 549.) It does not appear from the record that the case was ever served at any time; and there is nothing presented in the record, or otherwise, to show that service of the case was ever waived. Prior to July 24, 1886, notice was given to the defendant in error at the time when the case would be presented for settlement. It does not appear, however, that the defendant in error or his attorney was present when the case was settled and signed by the district judge, or that there was any waiver of appearance. No amendments to the case were ever suggested, and therefore the validity of the record is successfully challenged, as it fails to show affirmatively the previous steps necessary to the settlement of the case. (Weeks v. Medlr, 18 Kas. 425; M. K. & T. Rly. Co. v. Roach, 18 id. 592; Gimbel v. Turner, 36 id. 679.)

The judgment of the district court will be affirmed.